T & Anor (Appeal: Fair Hearings: Delegation of Judicial Functions), Re
[2024] EWHC 2236 (Fam)
E,F and G (Interim Child Arrangements), Re
24 July 2024
[2024] EWCA Civ 874
Court of Appeal
A mom accused her husband of abusing her and their kids. A judge let the dad see the kids unsupervised despite the accusations and a social worker's concerns. A higher court said the judge made a mistake, ruling the unsupervised visits are unsafe until the accusations are investigated.
Key Facts
- •Appeal by mother against unsupervised contact order for father with three daughters (aged 11, 10, 8) amidst allegations of domestic abuse and coercive control.
- •Father's application for child arrangements order, prohibited steps order, specific issue order, and FGMPO.
- •Mother's allegations of domestic abuse, including physical abuse of children and coercive control.
- •Cross-allegations of abuse and aggression.
- •Cafcass report recommending supervised contact due to serious allegations and children's fear.
- •Judge adjourned fact-finding hearing due to unavailability of Qualified Legal Representative (QLR).
- •Judge ordered unsupervised contact despite Cafcass recommendation and pending fact-finding hearing.
- •Mother appealed, arguing judge failed to comply with Practice Direction 12J (domestic abuse cases) and erred in prioritizing children's wishes over safety concerns.
Legal Principles
In cases with allegations of domestic abuse, interim child arrangements orders should only be made if in the child's best interest and not exposing them to unmanageable risk.
Family Procedure Rules Practice Direction 12J, paragraph 25
Court must consider all aspects of children's welfare using the 'welfare checklist' in section 1(3) of the Children Act 1989.
Children Act 1989, section 1(3)
The court's role in appointing QLRs is governed by Part 4B of the Matrimonial and Family Proceedings Act 1984 (inserted by s.65 of the Domestic Abuse Act 2021), Practice Direction 3AB, and Statutory Guidance.
Matrimonial and Family Proceedings Act 1984, Part 4B; Practice Direction 3AB; Re Z [2024] EWFC 22
Case management decisions are only interfered with if the judge erred in principle, considered irrelevant matters, failed to consider relevant matters, or made a decision so plainly wrong as to be outside the ambit of discretion.
Case law on appellate review of case management decisions
Outcomes
Appeal allowed.
Judge failed to comply with Practice Direction 12J by ordering unsupervised contact before the fact-finding hearing, prioritizing children's wishes over safety concerns in the face of serious allegations of domestic abuse.
Paragraph 7(b) of the order (unsupervised contact) set aside.
Unsupervised contact was deemed unsafe given the serious allegations of domestic abuse and pending fact-finding hearing. The judge's reasoning was inconsistent with PD12J and failed to adequately address the risk of harm.
Fact-finding hearing to be relisted before a designated family judge for further case management.
To address the mother's concerns that the judge had predetermined the issues surrounding domestic abuse allegations and ensure a fair process.